When can public officials punish a student for expression created entirely off-campus?
The recurring and vexing question has confounded school administrators, teachers, parents, students, and lower courts for decades. The question has become even more important over the last 20 years as more students express themselves online through social media.
The U.S. Supreme Court has a chance to answer the question and provide much-needed guidance to school administrators, teachers, parents, and students. Bell v. Itawamba County School Board is on the Court’s docket.
Public school officials in Mississippi suspended student Taylor Bell and removed him to an alternative school for several weeks after he posted a rap video on Facebook and YouTube that accused two teacher-coaches of sexually harassing female students.
Bell created his music at a recording studio and never used school computers to post the material. He never accessed the material at school. However, the teacher-coaches contended that they had to modify their teaching styles and one of the teachers said he felt threatened.
That was enough for a federal district court to rule in favor of school officials.
But on appeal, a divided three-judge panel of the 5th Circuit reversed that decision and ruled in favor of Bell. School officials appealed to the entire 5th Circuit, which granted review. A divided full panel of the 5th Circuit once again ruled in favor of school officials.
Several judges wrote dissenting opinions, warning that the majority had eviscerated the lines between school and parental authority. One dissenting judge beseeched the Supreme Court to provide guidance.
The lower courts are deeply divided over the appropriate legal standard to apply in these off-campus, online student speech cases. Most courts apply the seminal student speech case, Tinker v. Des Moines Indep. Community Sch. Dist. (1969), that involved several students who wore black peace armbands to protest U.S. involvement in the Vietnam War, support Robert Kennedy’s Christmas truce, and mourn those who had perished in the conflict.
The Supreme Court determined in Tinker that school officials could punish students for their expression only if school officials could reasonably forecast that the speech caused a substantial disruption of school activities or invaded the rights of others. The Court ruled 7-2 that the students wearing the black peace armbands had engaged in passive, political speech that was not disruptive.
A key question is whether this “substantial disruption” test applies with full force to off-campus speech. If it does, must school officials meet some threshold requirement – such as showing that there is a sufficient “nexus” or connection between the off-campus speech and events at school? Is it sufficient for school officials to claim that school officials have authority over off-campus expression because some of the “intended audience” are students and school officials?
In his request for Supreme Court review, Bell explains that Tinker involved expression on-campus and shouldn’t be applied, as a matter of rote, to all off-campus speech: “If Tinker applies to off-campus speech, schools could punish a student for expressing a controversial religious idea in church, writing a blog post against abortion, or advocating on a public sidewalk to cut the school’s football program – so long as a school could envision a substantial disruption.”
Bell’s case has added interest because he was a whistleblower who expressed himself via rapping, a form of music known for hyperbole. Bell and his legal team argue that the 5th Circuit decision below “not only ignores settled First Amendment jurisprudence, but also poses a grave threat to artistic expression.”
David L. Hudson, Jr. is the Ombudsman for the Newseum Institute First Amendment Center. He is the author of Let The Students Speak!: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011) and Teen Legal Rights.
Read more about this case here.